JUDGMENT Richhpal Singh, J.
1. This is a plaintiff's second appeal, arising out of a suit to recover arrears of land-revenue.
2. Under a compromise, dated 4th March 1922, the plaintiff owns a 9 anna share, and the defendants have a 7 anna share in the village in question. The plaintiff instituted a suit in the trial Court to recover a sum of money from the defendants. It was alleged that the land-revenue for the village in question, relating to the years 1327 to 1331 F., had been paid by the plaintiff on account of the share, of the defendants, and the suit was for the recovery of the same. The claim was resisted by the defendants. Both the Courts below have dismissed the claim, and the plaintiff has come up to this Court in second appeal. As. regards the years 1327 and 1329 F. the learned District Judge found that the land revenue for the share of the defendants in respect of these years had been paid by them in Hardoi District. This finding is binding in second appeal, and has not been seriously challenged before me. As regards 1328 F., it will be seen that the land revenue was paid for the period before the date on which the title of the defendants to a 7 anna share under the terms of the compromise was recognised.
3. The real dispute between the parties in this appeal 'is as regards the payment made for 1330 and 1331 F. In para. 6 of the written statement, the defendants contended that they became responsible for the payment of the revenue to the extent of 7 anna share from the date of the compromise, that is to say, from 4th March 1922. In para. 7 of the written statement it was pleaded that the plaintiff, contrary to the terms of the compromise, made collections of the entire 16 anna share in the village, that defendants did not realise a single shell, and that if the plaintiff paid any amount on account of land revenue for the years 1330 and 1331 F, it was out of the profits of the defendants' share, which, had been realized by him without any right and therefore be was not entitled to recover the same. Both the Courts below have come to the' conclusion that the entire profits of the 16 anna share in the village were realised by the plaintiff in years 1330 and 1331 F, and that the defendants had made, no collections at all. The question for consideration is whether the plaintiff's claim for the land revenue which he paid on account of the 7 anna share of the defendants in the village can be defeated on the ground that in these two years the entire profits were realised by himself.
4. It may be stated here that the suit is governed by the provisions of the old Agra Tenancy Act (Act 2 of 1901) as it was instituted before the new Act of 1926 came into force. The suit was instituted under the provisions of Section 160 of the Agra Tenancy Act of 1901, which enacts that:
a cosharer, who pays arrears of revenue on account of another cosharer, who defaults, may sue such cosharer for the amount so paid.
5. The provisions of the new Tenancy Act are exactly the same. The learned District Judge has refied upon a ruling reported in Ballab Dass v. Sita Ram (1912) 14 I.C. 578. I do not think that the ruling is applicable to the case before me. There the suit was against an auction-purchaser for the land revenue paid by the plaintiff on behalf of the judgment-debtors for a period prior to the date of the confirmation of the sale in favour of the auction-purchaser. The Court held that as the auction-purchasers had not obtained possession under the sale in their favour they could not be held liable for the revenue that had been paid before the commencement of their possession. But the facts of the case; before me are different. Here the defendants became co-sharers to the extent of 7 anna share under the teams of the compromise of April 1922. The fact that they themselves paid land revenue of their share for years 1327 and 1329 F. shows that they took it that they were liable for the same So. the case reported in Ballab Dass v. Sita Ram (1912) 14 I.C. 578 cannot help the defendants. But it appears to me that on the facts found by the learned District Judge the plaintiff-appellant is not entitled to any relief against the defendants. It has been found that during years 1330 and 1331 F. the defendants made no collections and that, the entire profits were realised by the. plaintiff himself. The case reported in Jagmohan Lal v. Ganga Prasad (1931) 130 I.C. 207 comes to the help of the respondents, It was held there that in a case under Section 160, Agra Tenancy Act, of 1901, it is necessary for the plaintiff to show that he paid the land revenue on account of which another co-sharer defaulted and that he made the payment from his pocket, In the case before me it will be seen that the plaintiff did not state in the plaint that the defendant had defaulted and that owing to that default he was made to pay the land revenue for them. Another case on the point is Dharampal v. Madan Mohan (1892) A.W.N. 72. It was held in that case that where a lambardar had to pay the land revenue on account of the share of another co-sharer, it lay upon him to prove that he could not have paid the same out of the profits collected by him. The principle of the ruling is applicable to the case before me. In spite of the terms of the compromise the plaintiff-appellant was in possession of the entire 16 anna share in the village and made collections. The defendant, according to the finding of the lower appellate Court, did not realise anything in these years.
6. The plaintiff paid the land revenue not out of his own pocket but out of the profits collected by him on account of the defendants' share. He paid the land revenue not because any default had been made by the defendants but because it suited him to make the payment. In my opinion, under these circumstances, the view taken by the learned District Judge is correct and the plaintiff is not entitled to recover the amount paid by him as land revenue.
7. For the reasons given above the appeal stands dismissed with costs. Permission to file a Latters Patent appeal is granted.